HASMUKHLAL ISHWARLAL KANSARA Vs. BHUPENDRAKUMAR ISHWARLAL KANSARA

JUDGEMENT

(1.) By this application under section 5 of the Limitation Act, 1963, the applicants (original petitioners) seek condonation of delay of 1772 days caused in filing miscellaneous civil application for review/recall of the order dated 6.9.2011 passed by this court in Special Civil Application No.9590 of 2011, whereby the petition was disposed of as not pressed.

(2.) The facts, as averred in the memorandum of application, are that in view of the categorical admissions made by the contesting respondent No.1, the earlier petition being Special Civil Application No.9590 of 2011 was withdrawn on 6.9.2011. Relying on the said admissions, an application Exhibit-1306 was given in the trial court requesting the court to give exhibit number to the Will which was brought on record by giving tentative Exhibit No.1233. However, by an order dated 22.12.2014, the application Exhibit-1306 was rejected by the trial court. The order dated 22.12.2014 is under challenge in Special Civil Application No.2680 of 2015 which is pending before this court. In the said matter also, the contesting respondents filed another affidavit-in-reply denying the fact of admission of execution of Will. It is in these circumstances that the applicants have filed a review application in the present case.

(3.) In response to the averments made in the memorandum of application, the respondent No.1 has filed affidavit-in-reply stating that he has filed Special Civil Suit No.192 of 1986 which came to be renumbered as Regular Civil Suit No.845 of 2005 in the Court of the learned Civil Judge, Surat for partition of the property being Ward No.11, Nondh No.13 situated at Lal Gate, Kanpith, Surat and Nondh No.2608 situated at Lal Gate, Khand Bazar, Surat and various other properties mentioned in the suit being HUF properties of Kansara family, seeking share in the said suit properties, etc. The said suit was resisted by the applicants by filing their written statement on 3.10.1986. Thereafter, the applicant No.1 filed an affidavit dated 6.1.1987 at Exhibit-34. On the said date only, that is, 6.1.1987 the applicants filed affidavits of attesting witnesses to the alleged Will, namely, Shri Hasmukhlal Gordhandas Engineer at Exhibit- 35 and Shri Gangaram Bhikhubhai Antrolia at Exhibit-36. On the said date, the applicants vide Exhibit-38 produced a list of documents along with the documents and in that at Serial No.1, produced only a photocopy of the alleged Will dated 29.12.1980 of their father Ishwarbhai Kansara. The Will was registered on 7.3.1981 by the applicant No.1 herein after the death of their father Ishwarbhai Kansara on 11.2.1981. It is further submitted that Shri Gangaram Bhikhubhai Antrolia, a witness to the said Will, expired on 17.4.1992, whereafter the applicants filed another affidavit dated 22.7.1996 of Hasmukhbhai Gordhandas Engineer a witness to the said Will, who expired on 11.11.2008. That after a long period of about more than eleven years from the death of Gangaram Antrolia - the said witness to the Will, an affidavit dated 24.6.2003 of his son Rajubhai alias Naresh, son of Gangaram Antrolia, came to be filed. Thereafter, vide application dated 7.4.2011 at Exhibit- 632, the applicants produced before the court the alleged original Will dated 29.12.1980 registered by the applicant No.1 on 7.3.198, after the death of their father on 11.2.1981 and also both the witnesses to the said Will, for reasons best known to them. Attention is invited to the fact that vide Exhibit-38 dated 6.1.1987, with the list of documents, only the photocopy was produced, though the applicants were having the original Will.